Plaintiff Kris Perry hugged a marriage equality supporter on the steps of the state Supreme court building. The California Supreme Court cleared the way Thursday November 17, 2011 for a federal court test of the state's ban on same-sex marriage, ruling that sponsors of the voter-approved measure have the right to appeal a federal judge's ruling that struck it down.

Photo: Brant Ward, The Chronicle

Plaintiff Kris Perry hugged a marriage equality supporter on the...

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Supporters of same sex marriage gathered in front of the courts building in San Francisco, Calif. to discuss the ruling. No one from the pro-Proposition 8 group was seen. The California Supreme Court cleared the way Thursday November 17, 2011 for a federal court test of the state's ban on same-sex marriage, ruling that sponsors of the voter-approved measure have the right to appeal a federal judge's ruling that struck it down.

Photo: Brant Ward, The Chronicle

Supporters of same sex marriage gathered in front of the courts...

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Bob Sodervick waved the gay freedom flag on the steps of the court building after the decision. The California Supreme Court cleared the way Thursday November 17, 2011 for a federal court test of the state's ban on same-sex marriage, ruling that sponsors of the voter-approved measure have the right to appeal a federal judge's ruling that struck it down.

Photo: Brant Ward, The Chronicle

Bob Sodervick waved the gay freedom flag on the steps of the court...

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Shelly Bailes came all the way from Davis, Calif. for the ruling. The California Supreme Court cleared the way Thursday November 17, 2011 for a federal court test of the state's ban on same-sex marriage, ruling that sponsors of the voter-approved measure have the right to appeal a federal judge's ruling that struck it down.

Photo: Brant Ward, The Chronicle

Shelly Bailes came all the way from Davis, Calif. for the ruling....

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Plaintiffs Sandy Stier (left) and Kris Perry talked after the decision, which neither was surprised by. No one from the pro-Proposition 8 group appeared outside the court building. The California Supreme Court cleared the way Thursday November 17, 2011 for a federal court test of the state's ban on same-sex marriage, ruling that sponsors of the voter-approved measure have the right to appeal a federal judge's ruling that struck it down.

Photo: Brant Ward, The Chronicle

Plaintiffs Sandy Stier (left) and Kris Perry talked after the...

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Two of the four plaintiffs in the case showed up for the decision, Sandy Stier (left) and Kris Perry. Neither said they were surprised with the decision. The California Supreme Court cleared the way Thursday November 17, 2011 for a federal court test of the state's ban on same-sex marriage, ruling that sponsors of the voter-approved measure have the right to appeal a federal judge's ruling that struck it down.

Sponsors of California's voter-approved ban on same-sex marriage have the right to challenge a federal judge's ruling that declared the law unconstitutional, the state Supreme Court declared Thursday, clearing the way for a federal appeals court test of an issue that could make its way to the nation's high court.

The decision addressed a procedural but potentially crucial issue: Can private backers of an initiative represent the state's interests when the governor and attorney general, who normally decide whether and how to defend laws in court, bow out of the case?

The court's unanimous ruling will almost certainly allow Protect Marriage, the religious coalition that campaigned for Proposition 8 in 2008, to proceed with its appeal in the Ninth U.S. Circuit Court of Appeals in San Francisco.

'Grave doubts' ruling

That court heard arguments from Protect Marriage and gay rights advocates on the constitutionality of the ban on same-sex marriage in December but put the case on hold to ask the state court, the highest authority on the meaning of California law, whether sponsors of initiatives in California have legal standing to defend them in court.

The question arose when Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown declined to appeal an August 2010 ruling by Chief U.S. District Judge Vaughn Walker that Prop. 8 discriminated on the basis of sexual orientation and gender.

Walker had allowed Protect Marriage to defend the measure in his court but questioned its right to appeal, citing a 1997 U.S. Supreme Court decision in an Arizona case that expressed "grave doubts" that sponsors of an initiative could stand in for state officials in court. The high court noted in that case that proponents of a ballot measure are not elected by anyone and represent no constituents.

If the California court had concluded Thursday that only state officials could appeal Walker's ruling, the federal court probably would have dismissed Protect Marriage's appeal and allowed same-sex couples to marry, at least until a county clerk or someone else affected by the change filed a new suit.

But the state court said that ballot initiatives, established in California a century ago to counteract special-interest influence on legislation, have an exalted place in state law, and their supporters are entitled to a legal defense even when state officials are unwilling to provide one.

Sponsor participation

The initiative power "gives the people the right to adopt into law measures that their elected officials have not adopted and may often oppose," Chief Justice Tani Cantil-Sakauye said in her first significant opinion since taking office in January.

California courts have routinely allowed initiative sponsors to take part in their defense, she said, recognizing "the risk that public officials may not defend an initiative's validity with vigor." When the officials who normally represent the state decline to do so, she said, the ballot measure's official advocates must be allowed to step in.

"Neither the governor, the attorney general, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters," said Cantil-Sakauye, an appointee of former Gov. Arnold Schwarzenegger.

The Ninth Circuit could reach a different conclusion, but Cantil-Sakauye noted that the federal court, in its request for an advisory opinion, said the right to appeal would be decided by state law.

Plaintiffs who challenged Prop. 8 in federal court and argued that Protect Marriage lacked standing to appeal Walker's ruling, said they expect the federal court to accept Thursday's decision and rule on the constitutionality of the measure, probably without a further hearing.

"We're very hopeful for a relatively prompt Ninth Circuit decision vindicating the rights of gay and lesbian citizens of California," Olson said.

No bias found

Andy Pugno, a lawyer for Protect Marriage, called the ruling "a huge disaster for the homosexual marriage extremists." The plaintiffs' "entire strategy," he asserted, "relied on finding a biased judge and keeping the voters completely unrepresented."

Besides challenging Walker's ruling, Protect Marriage contends the now-retired judge should have revealed before the trial that he is a gay man with a longtime partner and therefore could be affected by his own ruling. Walker's successor, Chief Judge James Ware, found no evidence that Walker was biased and declined to set his ruling aside, an issue that is now before the appeals court.